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Sixth Circuit Rules Employers Are Entitled To Review Employees' Eligibility For FMLA Leave Every 12 Months

In a recent decision, the Sixth Circuit Court of Federal Appeals held that an employer is entitled to re-evaluate an employee's eligibility for intermittent Family and Medical Leave Act (FMLA) leave at the start of each new 12-month FMLA leave period.

In other words, an employee who is approved for intermittent FMLA leave in one 12-month FMLA period and desires to continue taking intermittent leave in the following 12-month period must reapply for approval of intermittent leave. The Sixth Circuit's holdings are law in Kentucky federal courts.

The employee in this case, Candice Davis, was approved to commence intermittent FMLA leave on n September 24, 2004. Between September 24 and December 13, Davis took several discrete absences from work. Each time she was absent, she sought FMLA leave by submitting the required FMLA medical certification forms. On each of these forms, Davis's healthcare provider indicated that Davis's absences were caused by her serious medical condition. These absences were approved as FMLA leave without re-evaluation of Davis's eligibility for FMLA leave on the date of each absence because the employer concluded that Davis's eligibility should only be evaluated at the commencement of the intermittent leave, which occurred on September 24. On December 13, 2004, Davis began an absence that continued into 2005. Davis never submitted an FMLA medical certification form for this leave, although she notified the employer of her intent to use FMLA leave during the first week of this absence.

On January 7, 2005, Davis's health care provider notified her employer that Davis could have returned to work on January 3. The employer, therefore, notified Davis on January 12 that only those absences from December 20, 2004, until January 2, 2005, would be deemed approved leave and that every absence after January 2 would be considered an unexcused absence unless Davis sought and received FMLA leave for those absences. Davis was further notified that she would be considered to have resigned if she did not report to work on January 14. January 14 came and went without Davis's reporting to work. As she had already been disciplined on three separate occasions for poor attendance, Davis was terminated in accordance with the employer's attendance policy.

Davis sued and the trial court dismissed her case on the employer's motion for summary judgment. Davis appealed and the Sixth Circuit affirmed the lower court's decision. The Sixth Circuit concluded that a period of intermittent leave can only extend to the end of the 12-month FMLA period in which it began. A period of intermittent leave cannot carry over into the next 12-month FMLA period. Thus, once a new 12-month FMLA period begins, any additional absences caused by the same chronic condition constitute a new period of intermittent FMLA leave. It is, therefore, lawful to re-evaluate an employee's eligibility for intermittent FMLA leave upon the commencement of leave in the subsequent leave period.

Even if Davis had applied for FMLA leave in 2005, she would not have qualified. The employer used the calendar year as its 12-month FMLA period, and Davis had not worked 1,250 hours during the twelve months preceding January 3, 2005 (the date of her first absence in the new 12-month FMLA period). Davis's January 2005 absences were, therefore, unexcused.

This is good news for employers. It confirms that an employer may, at the beginning of a 12-month FMLA period, require an employee to reapply for-and qualify for-intermittent FMLA leave. Failure to apply and qualify is ground for denying additional leave. If the employee incurs absences which ultimately do not qualify for FMLA protection, such absences may be counted against the employee pursuant to the employer's attendance policy.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group.

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